Owners of the Ivy at Great Falls, a nursing home, have filed a complaint in Cascade County District Court asking the court to block the facility’s closure by state and federal agencies.
The facility filed suit against the Montana Department of Public Health and Human Services over the agency’s termination of the Medicaid provider agreement forcing the facility to involuntarily relocate it’s “infirm residents” without any sort of hearing.
The Ivy’s lawyers are asking the court to block the state from closing the facility, otherwise, “dozens of elderly, infirm, and, in some cases, mentally challenged, individuals will be unnecessarily and involuntarily relocated from their home-in some cases to places unknown-thereby exposing them to the well-documented physical and psychological damage of ‘transfer tauma,’ according to the complaint.
On June 24, the Centers for Medicare and Medicaid Services, or CMS, notified the Ivy that it was terminating the facility’s Medicare provider agreement effective July 9.
Ivy nursing home closing due to federal violations, residents being relocated
According to the Ivy’s complaint, CMS declined to further review the case or order DPHHS staff to determine whether the facility had corrected any previously cited deficiencies.
The formal termination notification was issued July 9, terminating the facility at 1130 17th Ave. S. as a skilled nursing facility in the Medicare program.
The Montana Department of Public Health and Human Services also terminated the the facility from the Medicaid program, as of July 9.
“These actions are taken because CMS has determined that Ivy at Great Falls failed to attain substantial compliance with certain Medicare and Medicaid participation requirements,” according to the CMS notice.
Montana DPHHS has issued a six-month provisional state license to Ivy to allow time for the relocation of residents, Jon Ebelt, DPHHS spokesman, told The Electric.
According to the Ivy’s complaint, filed July 19, about 100 Montana Medicaid beneficiaries live at the facility.
“Most are very elderly, and many suffer from dementia and other mental conditions. About 15 residents are elderly and infirm former patients of Warm Springs State Hospital, whom the [Ivy] agreed to admit and serve after every other skilled nursing facility in the State declined to do so. If the [Ivy] closes, it is unclear where many of these residents would go,” according to the lawsuit.
As of July 18, 61 percent of residents, or 65 of the 106, had either been relocated or accepted, but not yet moved, to a new facility and the remaining 41 had referrals that were being followed up on, Ebelt told The Electric.
Holly Matkin, a DPHHS spokeswoman, told The Electric that as of July 26, 80 percent of residents, or 86 of the 106, had either been relocated or accepted into a new facility and the remaining 21 have referrals that are being followed up on.
The Ivy functions under the Medicare program’s regulations governing the structure and operation of nursing facilities and DPHHS has adopted those regulations as state requirements, according to the Ivy’s lawsuit.
DPHHS evaluates compliance through inspections and provides that data to CMS, which can impose “sanctions, including civil money penalties, bans on admissions, and ultimately – in certain cases of serious ‘immediate jeopardy’ to resident health and safety, or for persistent noncompliance that is not corrected within six months – termination of a nursing facility’s Medicare provider agreement. Either CMS or DPHHS is authorized to impose parallel sanctions for violations of Medicaid standards,” according to the Ivy’s lawsuit.
The Ivy’s suit argues that federal law doesn’t require a pre-termination hearing or allow an appeal process to stop a termination, but the Montana Constitution provides for remedies and “immediate judicial review of agency actions,” but the DPHHS administrative rules deny state administrative or judicial review of the agency’s action to impose sanctions.
According to their complaint, the Ivy “has had a challenging survey history (at least partially due to its size and challenging resident population), and DPHHS and CMS have cited various instances of noncompliance, or ‘deficiencies.’ The ordinary process is that after DPHHS cites noncompliance, a nursing facility submits a ‘plan of correction;’ DPHHS and/or CMS approve the plan; the facility implements the plan and corrects the noncompliance, trains staff accordingly, etc.; and residents are not adversely affected.”
The Ivy argues in their suit that it didn’t have the chance to correct cited deficiencies and that DPHHS hasn’t terminated the facilities operating license.
DPHHS officials told The Electric earlier this month that the agency had terminated the Ivy from the Medicaid program, effective July 9 and had issued a six-month provisional state license to allow time for the relocation of residents.
“These actions are taken because CMS has determined that Ivy at Great Falls failed to attain substantial compliance with certain Medicare and Medicaid participation requirements,” according to the CMS notice.
DPHHS handles CMS certifications under federal law and licensure of healthcare facilities under state law, both of which falls under DPHHS’ Office of Inspector General.
The OIG-Certification Bureau conducts health surveys on behalf of CMS on the minimum standards set by the federal agency, according to DPHHS.
CMS reviews a facility’s status, survey history and severity of deficiencies, along with its ability to correct and sustain corrections for cited deficiencies after each survey and determines if a facility will be recertified or if the federal contract will be terminated, according to DPHHS.
In this case, CMS decertified Ivy at Great Falls.
In April, CMS released the list of nursing homes that “have a history of serious quality issues and are included in a special program to stimulate improvements in their quality of care,” in the specialty focus facility program.
The Ivy was included on that list.
When nursing homes don’t meet CMS’ healthcare or fire safety standards, these instances are cited as deficiencies, and we require that the problems be corrected.
Most nursing homes have some deficiencies, with the average being six to seven deficiencies per standard health inspection, but some have:
- more problems than other nursing homes;
- more serious problems than most other nursing homes (including harm or injury experienced by residents), and
- a pattern of serious problems that have persisted over a long period of time (as measured over about three years before the date the nursing home was first put on the SFF list)
Those nursing homes may sometimes correct those problems on one inspections, significant problems would often resurface later, and “facilities with a ‘yo-yo’ compliance history rarely address underlying systemic problems that give rise to repeated cycles of serious deficiencies, which pose risks to residents’ health and safety,” according to CMS, so it created the SFF program.
The Ivy was included on the April list of current SFF facilities and included the most recent inspection results as met or not met. Met means the facility met the graduation criteria on its most recent survey and is on track for graduation. Those criteria must be met on two consecutive surveys to be eligible for graduation, according to CMS.
Not met means the facility did not meet that criteria on their most recent survey and must restart the process.
The Ivy’s last inspection had been October 2023 and was listed as “not met.”
The Ivy has not responded to The Electric’s request for comment from July 1.
A March 2024 inspection had 12 deficiencies.
A January 2024 complaint report found three deficiencies.
The October 2023 inspection found 20 deficiencies and the Ivy was fined $17.872, according to inspection documents.
*Ivy at Great Falls photo
